SHOES N SHAPES Vs. J K TRADERS
LAWS(DLH)-2007-3-67
HIGH COURT OF DELHI
Decided on March 01,2007

SHOES N SHAPES Appellant
VERSUS
J.K.TRADERS Respondents

JUDGEMENT

SWATANTER KUMAR, J. - (1.) This is an application filed by the appellant praying for leave to withdraw the amount of Rs.8 lacs which had been deposited by him on 6.4.2006 by means of a pay order dated 6.4.2006. The appellant filed an appeal under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree granting recovery of a sum of Rs.9,48,879/- together with interest @ 18% per annum under the provisions of Order 37 of the Code of Civil Procedure dated 24.10.2005 passed by the learned Additional District Judge, Delhi in Suit No. 98/2005, in which the appellant had filed an application for leave to defend under Order 37 Rule 3 (5) of the CPC. Finding no substance in the defence of the appellant, the learned Trial Court dismissed the application for leave to defend and passed the decree in question. The above appeal was finally disposed of by judgment dated 10.10.2006 passed by a Division Bench of this Court in RFA No. 108/2006. The relevant part of the judgment reads as under:- "We are of the considered view that without leading evidence, all these issues cannot be decided. The learned trial court has erred in holding that there was an outright sale of the shoes and other leather goods made by the plaintiffs to the defendants without appreciating the pleas raised by the appellants in their application moved under Order 37 Rule 3 (5) of the Code of Civil Procedure. We, however, hold that the impugned order cannot sustain in the eyes of law. The impugned order dated 24.10.2005 is, therefore, set aside. The appellants are granted leave to defend the suit under Order 37 rule 3(5) of the code of Civil Procedure. With these observations, the appeal is allowed. Trial court record be sent back immediately. The parties are direct to appear before the learned trial court on 27-11-06. The parties are left to bear their own costs."
(2.) During the pendency of the appeal, vide an interim order dated 15.2.2006, the court had granted conditional stay of the decree, while directing the appellant to deposit a sum of Rs. 8 lacs in the Court within a period of 8 weeks from the date of the passing of the order. The interim order dated 15.2.2006 reads as under:- "CM No. 2391/2006 (stay) Notice for the date fixed. In the meantime operation of the impugned Judgment and Decree dated 24.10.2005 passed by the Additional District Judge, Delhi in Suit No. 98 of 2005 shall remain stayed, subject to the condition that the appellant shall deposit an amount of Rs.8,00,000/- in this Court within a period of eight weeks. As and when the aforesaid amount is deposited in this Court the same may be kept in a fixed deposit account initially for a period of six months."
(3.) Having succeeded in the appeal on merits the appellant-applicant has filed the present application for withdrawal of the said amount. According to the applicant the leave to defend would be deemed to have been granted unconditionally and as such the amount deposited in terms of the interim order dated 15.2.2006 has to be withdrawn by the applicant. The prayer made in the application is opposed by the non-applicant while arguing that in view of the interim order passed by the Court, the applicant has no right to withdraw the said amount and the amount should remain deposited till the suit is decided by the learned Trial Court in accordance with the law.;


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